Yo, Pep, I don’t think they’re gonna play this on the radio

Early reports from this morning's Supreme Court hearings on the FCC's " …

As Matt Lasar reported last month, the Supreme Court this morning heard oral arguments in FCC vs. Fox Television Stations, a case that will determine the fate of the broadcast regulator's ban on the utterance of even "fleeting expletives" over the public airwaves. Even former FCC Chairman Michael Powell, who voted for the "fleeting expletives" rule, now says that it is probably unconstitutional. But my friend Adam Thierer, a senior fellow at the Progress & Freedom Foundation, attended the court's morning session, and didn't sound terribly optimistic about the prospects for your freedom of the F-bomb:

I did not think things went well. Scalia and, more problematically, Chief Justice Roberts, launch into a full-throated attack against Fox’s argument that the court should reel in the agency. CJ Roberts ended up being far more deferential to the FCC than many of us thought he would.

[There were] very interesting line(s) of questioning raised by Justice Ginsburg. (1) She specifically asked about the Internet and online speech cases and whether that changes things for other media. This was one of the key points I raised in my amicus with CDT. (2) On a related note, she also asked some sharp questions about the continuing sensibility of the “contemporary community standards” test for broadcast television and radio regulation.

Oh, one other point… there were several questions from Justices Breyer and Scalia about tape delays and whether broadcasters had the ability to essentially delay all live programming to make sure no dirty words got through. During this line of questioning, I found myself thinking how now might be a good time to invest in the tape delay technology business!

We should have a full write-up and analysis later in the day once a transcript is available.